Why Can’t Native Americans Make Whiskey?

By C. Jarrett Dieterle and Kevin R. Kosar

June 4, 2018

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CreditCreditLeonardo Santamaria

In 2016, the Confederated Tribes of the Chehalis Reservation, in southwestern Washington State, began selling craft spirits and beer at a restaurant in their Lucky Eagle casino. But when the Chehalis wanted to start making their own hooch, the federal government said no.

The Bureau of Indian Affairs informed the tribe that federal law prohibits the building of a distillery on tribal grounds. The Chehalis would have to continue to purchase spirits from producers off the reservation.

Small-scale distilling is a booming business, providing much-needed jobs and revenue for state and local governments. So why are Indian tribes legally prevented from joining in?

This distilling prohibition originates from an 1834 law regulating trade on Indian lands. The law threatened fines and asset forfeiture for anyone who sold, possessed or made strong drink of any kind on tribal grounds. In drafting the law, Congress appears to have been partly motivated by concerns over non-Indian settlers dodging federal alcohol taxes by setting up distilleries on tribal grounds. But Congress could have dealt with this matter straightforwardly by taxing alcohol production on the reservations.

It was a darker motivation that led Congress to ban booze entirely: a condescending view of Native Americans as helpless to resist the intoxicating allure of alcohol. During that era, the stereotype of the drunken Indian was pervasive, and federal lawmakers enacted laws intended to “protect” Native Americans from both themselves and deceitful liquor traders. The 1834 statute’s stated secondary purpose indicates as much, describing itself as an act “to preserve peace on the frontiers.”

The ban, which was signed by Andrew Jackson, was a piece of a broader paternalistic policy scheme that treated American Indians as wards of the state. Indians, the thinking went, were uncivilized, incapable of enlightened self-rule and bound to be fleeced by white settlers. So the federal government solved the “Indian problem” by putting them on reservations, where they could be protected by the Department of War. To add further insult, soldiers stationed on reservations were exempted from the booze ban and enjoyed government-supplied daily whiskey rations.

In the 1950s, Congress amended the 1834 law to permit the sale and possession of alcoholic beverages on reservations, but it left the ban on distilling intact. Indians could make liquor only if they moved off the reservation.

In recent years, members of Congress have introduced several bills to repeal outdated and offensive laws governing Native Americans and reservations, including one that targets the distilling ban. Repealing this prohibition would be a worthwhile — if modest — down payment on clearing away these types of laws. At the same time, it would foster much-needed economic development on Indian reservations. The Chehalis have estimated that their proposed distillery and brewery project would create up to 100 jobs, a reasonable expectation, given the recent renaissance of craft distilling around the country.

The craft spirits industry created nearly 6,000 jobs in the last year, while the number of distilleries grew by over 20 percent; today, there are more than 1,500 nationwide. This momentum shows no signs of stopping; distillery investments were projected to double from 2016 to 2017, the latest year for which data are available. Even more impressively, data from the Bureau of Labor Statistics suggest that breweries, wineries and distilleries created the second most manufacturing jobs of any industry in 2017.

This type of job growth would be particularly welcome on tribal reservations, given the economic woes facing Native Americans. Over two-thirds of areas with majority Native American populations have unemployment rates above the national average, with some as high as 20 percent. Denying Native Americans access to this fountain of decent-paying, blue-collar manufacturing jobs based on nothing other than an ancient and offensive law is indefensible.

Permitting Native Americans to distill their own spirits may set off a renewed round of paternalistic hand-wringing. Studies have long pointed to heightened alcohol consumption rates among Native Americans, which provides fodder for opponents of tribal distilling. While concerns over alcoholism should be taken seriously, there are better ways to address this longstanding problem, such as increased education and treatment. It also is important to recognize that abolishing the 1834 act would not expand access to liquor, but merely shift who profits from its production.

During his testimony in support of repealing the distilling ban, Harry Pickernell, chairman of the Chehalis tribe, noted that the official policy of the United States government is to “support tribal self-determination and self-sufficiency,” which means that tribes must be able to provide for their members through economic development. Congress should let them open distilleries and do exactly that.

Correction:

An earlier version misstated the location of the Chehalis Reservation. It is in southwestern Washington, not the southeastern part of the state.